American Bar AssociationGeneral Practice, Solo, and Small Firm Division The Compleat LawyerSpring 1997 copyright American Bar Association. All rights reserved.

Dirty Tactics

BY JILL SCHACHNER CHANEN

Jill Schachner Chanen is a freelance writer in Chicago. She writes regularly for the ABA Journal.

The New Jersey lawyer probably did not think twice about holding a conference call with his California-based adversary to begin settlement negotiations for one of his clients. The conference call - held over speaker phones in each lawyer's office so their respective clients could participate - seemed to be progressing toward settlement when the California lawyer asked for a few minutes to speak privately with his client.

Thinking they were on hold, the New Jersey lawyer and client began to speak freely. The client disclosed his bottom-line position to his lawyer.

What they did not know was that the Californians had pushed the mute button on the speaker phone instead. They could hear everything the New Jersey lawyer and client thought they were discussing in private.

The case settled on very favorable terms to the Californians.

"I remember making a mental note to never talk 'privately' while on hold with a speaker phone [after hearing that story]," says Minneapolis lawyer Wells Anderson of Wells Anderson Legal Tech Services, recounting the story.

Whether it is brinkmanship, laziness, or simply succumbing to pressures to do more with less, a few lawyers seem to be stooping to new lows to come out on top.

While it is debatable whether these dirty tactics give anyone an advantage, there is no question that lawyers now must learn how to outwit unscrupulous opponents in order survive in today's competitive legal environment.

What Are Dirty Tricks?You've seen them. You've heard about them. You may even have been the victim of one or two of them. Dirty tricks are those behaviors that walk the ethical tight rope between zealous advocacy and dishonesty.

Like the opposing counsel who never seems to be in no matter what time you call. Or the brief with the transposed citation to the most important case in the opposition's claim. Or the lawyer who always seems to stand a little too close and raise his voice a little too loud whenever he appears in court.

"We call it big firm-itis," says Fritz Knaak, of counsel to Holstadt & Larsen in Vadnaid Heights, Minnesota. "They overload you, they are nasty and then they start threatening you with sanctions."

Knaak's practice has been largely free of these ploys, but he sees them spreading as small firm practices become more sophisticated and bring them in touch with large firms in metropolitan areas.

Discovery Is the WorstThough no practice area is immune from dirty tricks and games, litigators bear the brunt of the problem. The explanation, say lawyers, may be as simple as the fact that so much more opportunity for dirty tricks exists in trial practices.

The game playing seems to be worst in discovery, observes Judge Barbara Kerr Howe, a circuit court judge in Baltimore County, Maryland, who routinely hears complaints in her courtroom about overbroad document requests, failures to appear at scheduled depositions, and other, obstreperous behavior.

"The common thread in all of this is to send incredibly broad discovery requests and, no matter what the response is, to attack it as not sufficient," says Indianapolis lawyer Stephen Terrell of Landman & Beatty.

Terrell was so outraged by the behavior of a lawyer for a Catholic church in South Bend, Indiana, that he moved for sanctions after the opposing counsel repeatedly failed to disclose during discovery a key provision in the church's insurance policy.

Terrell first had requested information in an interrogatory about who had settlement authority under the policy. The answer stated that only the insured's consent was necessary to settle. When Terrell asked for proof, the church obliged, sending the voluminous policy without the two key pages that supported their interrogatory answer. Is This a Dirty Trick?The letter arrived without the document the lawyer said she was forwarding. The 500 pages of business records copied for you by opposing counsel is missing sales receipts for the three days in question. Changes were made to the latest version of the contract based on the first round of negotiations, not the second.

Is it laziness or sloppiness, or is it a dirty trick?Look for a pattern of behavior, suggests Jeffrey Allen of Graves & Allen in Oakland, California. "Every dog gets one bite. I understand one mistake, but if it happens two or three times..." How critical were the missing pages or the unchanged paragraph in a hotly contested provision of a contract, asks Stephen Terrell of Landman & Beatty in Indianapolis. "When it is the critical information that is missing, you do start to question it."

When he finally received the missing pages after several phone calls, Terrell found that the policy stated something quite different than what the church's lawyers had told him: The insurer had complete authority to settle the claim.

Wichita, Kansas, lawyer Dwight Corrin had a slightly more difficult time getting a dirty trick resolved favorably. Corrin had traveled out of town to take depositions in a case where his client had been left a paraplegic. Toward the end of the first day, the opposing counsel told Corrin that he needed to cancel the next day's scheduled deposition of one of Corrin's experts.

Corrin decided to meet with his expert privately the next day. When he arrived at the expert's office, Corrin learned that the opposing counsel had been there earlier in the day, professing to be there to attend the deposition. The defense lawyer convinced the expert to talk to him outside of the deposition while he was at the office.

While Corrin was helpless to undo what his opposing counsel had done, he did get a magistrate judge to impose the expert's costs on the defense.

Although dirty tricks still are fairly rare in Kansas City, Missouri, Rick Morefield has begun preparing his clients for some of the tactics he has been exposed to at depositions. He routinely explains the sanction process after one lawyer threatened to get a federal court judge to impose sanctions on one of his clients during a deposition.

The opposing counsel began asking Morefield's client about privileged matters during the deposition. When Morefield objected, the other lawyer became abusive and told his client that he would be sanctioned by a federal judge if he did not answer the questions. Morefield's client, who only had a high school education, was traumatized by the threat despite his lawyer's assurances. "Ever since that incident, I tell my clients that if the other lawyer threatens sanctions, it is me that is sanctioned, not them," he says.

But private lawyers aren't the only ones who stoop to win. Chicago environmental lawyer Mary Bryant says that some of the most unsavory tactics she has experienced have been at the hands of government lawyers. Although she says beating them is the best revenge, she makes sure she wins with clean hands.

In a criminal case brought by the Illinois Environmental Protection Agency (IEPA) against one of her clients for allegedly mining gravel without a permit, Bryant thought she had a sure-fire defense: Her client had the required permit. It had been legally transferred to him by one of his partners under state regulations.

Lawyers for the IEPA argued that the agency had a policy against such transfers and the policy voided the state regulation. Bryant smelled something fishy and asked to see the policy. When the IEPA denied her request, she filed a Freedom of Information Act request. The agency again denied the request, this time claiming the policy was an investigatory record. She then filed an appeal, which also was denied.

In discovery, Bryant again asked for the policy. When the agency refused to comply, she brought it to the judge's attention. The judge gave the IEPA three weeks to respond.

On the twenty-first day, the IEPA finally admitted that it had no such policy. "I used the machinery of the government to get that admission," she says. "The IEPA's lawyers knew that the judge would have sanctioned them if they had not given up the policy...So you can get things through discovery."

Though she won, Bryant rues the impact of having to respond to these tactics. "It takes the focus away from what is important. A lot of things get into litigation that have nothing to do with the real issue," she says.

Blame TechnologyTechnology has been blamed for increasing client demands, and now many lawyers say it also is responsible for fostering more game playing. The fax machine appears to be the number one culprit - it enables lawyers to cut close to the edge of deadlines.

Most states now permit service of notices for hearings, motions, and other court matters by fax machine, says Manuel Sanchez of Sanchez & Daniels in Chicago. Unfortunately, many lawyers are using it to inconvenience their opponents.

The courts in Chicago are so backlogged that lawyers often schedule routine motions on emergency dockets just to get in front of a judge. The hearings typically are held early in the morning, and notice only needs to be served the day before to comply with the local rules. Sanchez says that service of notices by the fax machine at 5:00 p.m. has become so commonplace in major cities like Chicago that he does not even consider it to be a dirty tactic. What does trouble him, however, is when opposing counsel serves him with the late notice because they know he is the local counsel.

Sanchez believes opposing counsel times these notices so that the client's lead counsel cannot schedule a flight into the city to attend the next day's hearing. "If you are lucky enough to get the notice by fax and get to the hearing, you are there basically naked because you do not have the lead counsel to guide you," he says. "It is clearly done to take advantage of the out-of-town situation."

Because faxes have time stamps on them, it often is easy to take care of the problem by showing the judge the time it was sent on the fax copy, others say.

Sometimes avoiding technology altogether is the best way to counteract the games. Nashville lawyer John Kitch was burned several times by the same lawyer who claimed never to get notice of his motions, no matter how service was accomplished. Even certified mail didn't help, since the lawyer wouldn't redeem the letter from the post office.

Exasperated, Kitch decided to personally deliver a notice of a motion to this lawyer. He also brought a witness with him in case the lawyer again tried to claim that he had not received notice. When the lawyer did just that, Kitch put his witness on the stand to testify to the service. "I never had any trouble after that," Kitch says.

How Low Can They Go?Terrell found himself in the unenviable position of having to hire a court reporter to record telephone conversations between himself and opposing counsel after his opponents repeatedly twisted the facts in court.

"They put a grain of truth in what was said and then put a completely different spin on the conversations," he recalls.

Terrell stopped taking spontaneous phone calls from the opposing counsel and only spoke at schedules times when the court reporter he hired was present to record the conversations. Not surprisingly, Terrell's problems with the veracity of the other side's in-court statements disappeared.

"It was fairly effective, though it was a dramatic step to take," he admits.

Not Just a Problem for LitigatorsWhile litigators may have better war stories, transactional lawyers say they occasionally are subject to the dirty trick too. "It goes on in transactional practices, but not as much because there is not an awful lot you can do in basic negotiations other than lie or use an interim draft and not mark all the changes and then hope it slides by," says Jeffrey Allen of Graves & Allen in Oakland, California.

Still, it happens. One lawyer in Chicago recalls a sale of a small apartment building where the seller's lawyer tried to renegotiate the terms of the deal by waiting until the closing to deliver the documents. (In Chicago, the lawyer representing the seller customarily prepares all of the closing documents. The documents are then sent to the buyer's lawyer in advance of closing for review in order to expedite the settlement process.)

The first time the purchaser's lawyer saw the closing documents was at the closing. They contained different dollar figures than what had been agreed to in the contract. Because the purchaser had a large amount of her own money at stake if the sale did not close that day, she agreed to accept a smaller proration of money for rents, insurance, and utility bills.

Allen believes the best way to handle any suspicions of dirty tricks is to confront the wrongdoer. "Sometimes I have a bad feeling about somebody and then you confront them and they say, 'Gee, I'm sorry. I don't know how that happened,' and the problem disappears."

Walking That Fine LineFew lawyers are disciplined for conduct such as sending late night fax notices or misrepresenting the facts in court. The apparent dearth of disciplinary proceedings against lawyers for this type of conduct can be explained, in part, by the fact that it usually does not violate codes of ethics. Dirty tricks like late night fax service of notice for an early morning hearing may be abusive, but not unethical, says Joanne Pitulla, assistant ethics counsel for the ABA Center for Professional Responsibility.

But other dirty tricks can rise to the level of unethical behavior. Pitulla cites five provisions of the ABA's Model Rules of Professional Conduct that provide a framework to determine when a dirty trick is unethical, including Rules 3.1, 3.4, 4.1, 4.4, and 8.3.

Pitulla explains that disciplinary agencies are loathe to get involved in matters if they are still pending in court. "A disciplinary agency is not a forum to protect a client's rights," she says. These agencies also can be stymied by allegations of unethical conduct if the court does not take action. For example, if a lawyer believes another lawyer is prosecuting a nonmeritorious claim, the disciplinary agency often has its hands tied if the judge does not make such a finding, Pitulla says. Unfortunately, many lawyers say that judges rarely get involved to stop the dirty tricks.

The failure of some judges to get involved and stop the abusive behavior has been noticed in Maryland, reports Howe. The judicial institute there plans to hold a seminar for judges on the problem this spring. "We are going to try to educate judges about how significant of a problem it is for lawyers and clients and what it does to their cases," she says.

Paper the FileNo matter how engaged the judge is, lawyers say not to let the dirty tricks come back to haunt you. At the first sign of trouble, Allen sends a letter to the opposing counsel detailing the problem and copies it to his client.

For example, if a lawyer does not provide him with a requested document after agreeing to do so, he writes: "I have called you five times. You have not had the courtesy to return my call, and I still have not received those documents."

For late night faxes, he notifies opposing counsel that he will not succumb to the tactic: "In court yesterday you said you would fax to me the following documents. You did so at 11:44 p.m. Certainly you must have known that I would not be working at that hour and would have no reasonable opportunity to review them."

Sanchez writes memos to his files whenever he suspects trouble. "It can be as basic as saying 'I spoke to attorney x and told him that I will not accept his 5:00 p.m. fax notices and that if he does it again I will ask for sanctions,'" he says.

"I want to memorialize it for me. If it never happens again, fine. But if it does, I know."